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Retaliation: legal ramifications and practical implications of discriminatory acts in the workplace
Angela Miles and Marka Fleming
Department of Management, School of Business and Economics, North Carolina A&T State University, Greensboro, North Carolina, USA, and

Arlise P. McKinney
Department of Business Administration, Joseph M. Bryan School of Business and Economics, The University of North Carolina at Greensboro, Greensboro, North Carolina, USA
Abstract
Purpose Retaliation complaints in the workplace have increased 71 percent in the past ten years with a record high of more than 32,000 complaints filed in 2008. The purpose of this paper is to review retaliation legislation to clarify for employers and employees the protected provisions and provide guidance for complying with this important anti-discrimination statute to aid in promoting a fair and unbiased work environment. Design/methodology/approach This paper reviews retaliation claims in cases of US employment discrimination including the central elements and covered individuals. It also reviews key recent rulings that have broadened what constitutes retaliation to better understand its impact in workforce management practices. Equity and organizational justice theories are drawn upon to address performance management and employee discipline issues that may arise in the workplace and how organizational action may be impacted by the retaliation statute. Findings Retaliation is often considered to be an overt act (e.g. demotion or termination) but this review demonstrates that adverse employment actions need not be overt or result from loss of job or wages by the employee. This review can be used to avoid costly litigation but also convey that retaliation statutes do not unduly influence the employers right to discipline employees. Originality/value This paper helps practitioners and researchers better understand retaliation and its purpose in preventing unfair work practices. This historical review of retaliation should help improve employer policies and procedures as well as training efforts in complying with equal employment opportunity laws without compromising concerns related to productivity or disciplinary procedures. Keywords United States of America, Discrimination in employment, Legislation, Case law Paper type General review

Equality, Diversity and Inclusion: An International Journal Vol. 29 No. 7, 2010 pp. 694-710 # Emerald Group Publishing Limited 2040-7149 DOI 10.1108/02610151011074416

The USA has provided significant acts of legislation to eliminate workplace discrimination on the basis of race, color, sex, religion, national origin, age, and disability among others. One aspect of protection that is often overlooked or misunderstood is retaliation. The retaliation statute was enacted to protect employees who file a complaint of employment discrimination from negative actions by employers for exercising their rights under equal employment laws. The possibility of experiencing retaliation may discourage employees from engaging in activities that are protected under the law. Likewise, employers may flinch in trepidation from the possibility of a discriminatory lawsuit and react in ways that minimize or exaggerate the circumstances. These concerns may be well-founded given that over the last few years, the number of retaliation claims

brought against employers has risen rapidly. In 2008, retaliation complaints in the USA surpassed gender discrimination as the second most reported charge with the Equal Employment Opportunity Commission (EEOC; www.eeoc.gov/statistics). The EEOC is the regulatory agency for the enforcement of the major US equal employment opportunity laws enacted to prevent workplace discrimination and investigate claims of retaliation. According to the EEOC, retaliation claims have increased by 71 percent in the past ten years and have steadily increased in each year with more than 32,000 complaints issued in 2008 (www.eeoc.gov). Furthermore, retaliation complaints account for nearly one-third of all cases reported to the agency. The finding that retaliation claims have steadily increased over the past ten years should heighten employer concerns for managing workplace behaviors. Further, the majority of discrimination and unlawful harassment cases currently being filed in state and federal courts include a retaliation component (Lieber, 2006). In addition to the increase in the number of retaliation claims, the damages associated with these claims are increasing. In 2008, the EEOC collected more than $111 million in damages based on retaliation cases, not including monetary benefits obtained through litigation (www.eeoc.gov/stats). A recent example of the tendency for retaliation damages to be larger than they have been in the past was the widely publicized case of plaintiff Anucha Browne Sanders who was awarded $11.6 million in punitive damages for the sexual harassment she endured while employed with the New York Knicks and the retaliation she experienced after complaining of this harassment (Zambito, 2007). This case represents one of the largest single plaintiff judgment awards in US history. In this case, both the discriminatory act and retaliatory behaviors were particularly egregious and has served to highlight the need for a better understanding of retaliation in the workplace. Indeed, the lack of understanding and/or compliance with the antiretaliation statute is a business necessity issue that has implications for organizational reputation, performance management, as well as significant financial exposure. The intent of this work is to review the legislation on retaliation to inform practitioners of this issue and the importance of instituting policies, procedures, and practices to ensure a fair and unbiased workplace as well as monetary consequences associated with noncompliance. Accordingly, in this review we seek to accomplish the following concerning retaliation:
. . . .

Discriminatory acts in the workplace 695

explain its meaning; review retaliatory acts in the workplace; provide strategies to prevent this form of discrimination; and address performance management concerns including employee discipline with an understanding of what acts may constitute retaliation.

We begin with a review of historical legislation including court cases and rulings on retaliatory behaviors that have implications for managers today. With the aid of legal databases (e.g. Lexus Nexus Academic), cases were assembled using qualitative methodology assessing relevance, precedence, and recent occurrence. We specifically reviewed US Supreme Court rulings because it is the highest court which sets the precedent for all other courts and provide the greatest generalizability of the findings concerning retaliation for organizations. We also conducted a literature review of employment discrimination in management to evaluate the coverage of the retaliation statute in prior research. The legal rulings provide the framework for this review, which we use to address organizational implications for compliance. Analytically,

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managerial inferences were derived from the application of the equity theoretical framework to support implications. We conclude this review by offering strategies for managing workplace fairness by drawing on both equity theory and organizational justice theories to promote effective performance management practices. Employment discrimination Equal employment opportunity laws are an important aspect of workforce management and reviews of the major US federal laws exist including the Americans with Disabilities Act of 1990 (Knapp et al., 2006), Affirmative Action (Crosby et al., 2006), Civil Rights Acts, and the Age Discrimination in Employment Act of 1967 (Posthuma et al., 2006). These reviews of equal employment opportunity legislation have generally focused on the demographic characteristics that have been associated with discriminatory acts in the workplace including race, gender, and sexual harassment. Prior research has shown that women and ethnic minorities account for the majority of discriminatory complaints where race and/or gender have impacted their employment outcomes (Berdahl and Moore, 2006; Konrad and Linnehan, 1999; Swim et al., 1995). Additionally, researchers and practitioners have addressed age (Taylor and Walker, 1994), disability (Knapp et al., 2006), and emerging issues in weight-based discrimination (Roehling, 1999). Each of these forms of discrimination focus on a characteristic of the individual that form the basis of subtle and overt actions against them in the workplace. Though prior research has also addressed employment discrimination against specific groups and provided some guidelines for handling employment discrimination complaints (Bojorquez and Kleiner, 2005), retaliation has not been examined extensively in management literature. For instance, prior literature reviews of discriminatory acts in the workplace often include disparate treatment which is the purposeful discrimination based on demographic categorization and sexual harassment (Berdahl and Moore, 2006; Lengnick-Hall, 1995; Lim and Cortina, 2005; Konrad and Linnehan, 1999; Portwood, 1995; Schein et al., 1996; Swim et al., 1995). These studies have addressed the differential treatment experienced by men and women in the workplace that has often resulted in less favorable employment outcomes for women as well as ethnic minorities. In the Goldman et al.s (2006) review of employment discrimination in organizations, retaliation is only defined but not discussed as the review focuses primarily on disparate treatment forms of discrimination. In Domagalskis (2008) review of employment discrimination, there was no reference to retaliation. Furthermore, some writers only link retaliation to Title VII of the Civil Rights Act of 1964 (Owens et al., 2008), despite Supreme Court rulings that expand its coverage (Gomez-Perez v. Potter, 2008; CBOCS West, Inc., v. Humphries, 2008) to other areas including the American Discrimination in Employment Act (ADEA) of 1967 and the Americans with Disabilities Act of 1990 (Louderback and Narvid, 2008; Mitchell, 2009). Our review of prior studies and legal cases reveal that though retaliation has been linked to specific court rulings, it has not been adequately incorporated into our overall understanding of employment discrimination and this work seeks to address this gap. While the major equal employment opportunity laws address discrimination based on protected group status (e.g. race, gender, age, religion, national origin, and disability), retaliation is not necessarily associated with or based on group membership but rather results from action(s) taken by employers against employees who have a pending or even settled complaint of employment discrimination. These actions may include but are not limited to threats, coercion, intimidation, harassment, or interference as a result of one exerting his or her rights under equal employment opportunity laws. Recent US Supreme

696

Court rulings have expanded the retaliation statutes to allow employees to file suit even when an employment action does not diminish the employees pay, hours, or benefits or cause the employee to suffer any kind of monetary loss (Burlington Northern and Santa Fe Railway v. White, 2006). The broadening of the definition of retaliation is expected to have the effect of escalating an already elevated number of claims, thus it is timely to review this important provision of the law to better inform practitioners as well as empower employees of ways to promote a fair and unbiased workplace for all workers. Furthermore, retaliatory-related acts, like many workplace practices, may impact employee perceptions of fairness and manifests into performance management concerns. Performance management encompasses goal-oriented processes to maximize employee, team, and organizational performance. Theoretically grounded in the equity (Adams, 1965) literature, perceptions of fairness and performance management are linked to firm viability (Bowen and Ostroff, 2004; Cicerone et al., 2005). Although performance management traditionally and primarily encompassed appraisal, researchers now suggest incorporating the element of employee perceptions (N den hartog et al., 2004) to enhance performance. Thus, retaliations connection to performance merits further exploration, and this review provides this consideration. What is retaliation? Retaliation is defined as an adverse action taken by an employer against an employee as a result of the employees act of seeking remedy from unlawful employment practices initially established in the Title VII of the Civil Rights Act of 1964. Section 704(a) of Title VII is the anti-retaliation provision of the statute and reads as follows:
It will be unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment [. . .] because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this title (US EEOC Compliance Manual, 2009).

Discriminatory acts in the workplace 697

The US Congress intended for the retaliation provision to increase the effectiveness of the Title VII statute by protecting employees from potentially adverse consequences that may have resulted from reporting employer violations. Most courts apply a threepronged test for retaliation cases. The employee bears the initial burden of establishing a prima facie case of unlawful retaliation and must demonstrate that: (1) he/she engaged in a protected act; (2) he/she suffered an adverse employment decision; and (3) there was a causal link between the protected activity and the adverse employment decision. In some cases, the courts have added a fourth element, requiring that the employer knew or reasonably should have known that the employee engaged in an activity protected by equal employment opportunity laws (Hafford v. Seidner, 1999). The reasonableness of the employees action is at the core of whether an activity is protected under Title VIIs anti-retaliation provision. First, the employee must have a reasonable belief that the employer is violating the law when he/she files a complaint of discrimination or harassment. Second, the employee must challenge the employer in a reasonable manner meaning that the employees challenge cannot be unlawful, interfere with the employees execution of his/her job duties, or constitute insubordination. Notably, it is unimportant whether the employee is accurate in his/her belief that the

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employers actions violate equal employment opportunity laws (Crew, 2007; Miles and Fleming, 2008). Under Title VII of the Civil Rights Act of 1964, a protected activity may result in retaliation when it meets one of the two conditions including: (1) participation in an investigation or a hearing about discrimination, which encompasses filing a charge with a state fair employment practices agency, the EEOC, or providing evidence during an investigation; and (2) direct opposition to discrimination, which includes lodging protests within the company, filing petitions, speaking to managers or public opposition to discriminatory practices such as making statements to the media or civil rights organizations (Olson, 2000). It also includes actions that range from interfering with job performance to threatening violence (www.eeoc.gov/retaliation). A third condition associated with a protected activity is the request for accommodation based on provisions provided in employment law related to race, color, sex, religion, national origin, age, and disability. The request for accommodation is most commonly associated with the Americans with Disabilities Act and may include requests for ergonomically-designed equipment such as a chair or desk necessary to fulfill the essential duties of the job. It is also important to note that the protection against retaliation applies not only to the complaining employee but also those in close association with the employee such as witnesses to the alleged discrimination. In addition, an employee bringing a retaliation claim does not have to be in a protected class but can be associated with the person filing a charge under a protected activity. For example, a Caucasian employee may allege that he or she was retaliated against for opposing discrimination against an African American coworker. Retaliation claims do not require the employee bringing suit against the employer to actually prove the alleged discrimination or harassment that forms the basis of the retaliation claim. Courts have held that retaliation cases can be ruled on independent of the facts underlying the initial discrimination charge (see Burlington Northern and Santa Fe Railway v. White). Further, the basis for ruling on retaliation can be substantially different from general discrimination complaints. For instance, retaliation could be demonstrated by a change in the employment relationship following a complaint of discrimination while a discrimination complaint needs to show a pattern or practice that violates equal employment opportunity laws which can often be difficult for a single plaintiff. Subsequently, the retaliation complaint would be evaluated based on the fact that the employee was engaged in a protected activity and suffered an adverse action, irrespective of the outcome of the initial discrimination claim. Thus, it is important for employers to understand not only what constitutes discrimination but also how to handle employee interactions in all aspects of employment once a complaint has been filed. The scope of retaliation claims Although the scope of retaliation has broadened, there were certain ambiguities in the anti-retaliation statute that have impacted how courts are interpreting the law. A particular area of controversy regarding the anti-retaliation provision has been the type and level of harm sufficient to constitute retaliation. For instance, some courts restricted retaliation claims to employment terminations and other significant employment decisions such as the denial of a promotion or raise, denial of a leave, a pay cut, or some other substantial change in position. Other courts have ruled that retaliation could be any adverse employment action that has the effect of deterring employees from complaining

698

about discrimination or illegal harassment. The lack of a clear definition in the Title VII statute has also caused confusion for the employers and employees who are left with many unanswered questions including, what happens if the employer changed the employees shift or made alterations to the employees workspace or job duties after a complaint? Would this change constitute retaliation and under what conditions would an employer be allowed to make such a change as business necessity for effective operations? These questions are addressed later in this review as we seek to provide clarity on how organizations can comply with employment laws, including the antiretaliation statute, in maintaining a fair and unbiased workplace. Another issue that has contributed to confusion about the Title VII anti-retaliation statute has been the mixed rulings in court cases that have resulted from divergent rulings in cases with similar circumstances (Ryan, 2007). The divergent court decisions can be classified into three main groups: (1) restrictive approach; (2) intermediate approach; and (3) expansive approach. The restrictive approach under Title VII specifies that employers were only prohibited from making ultimate employment decisions to retaliate against employees who had engaged in protected activities. This approach meant that employers were only liable for the most egregious forms of retaliation such as termination, demotion, granting leave and reducing pay. The intermediate approach required plaintiffs to show that they suffered a materially adverse action that negatively affected the terms, conditions or benefits of their employment, while the expansive approach prohibited any materially adverse action that would reasonably deter an employee from engaging in a protected activity. These approaches have been applied indiscriminately and have resulted in considerable variability in court rulings such that different standards have been applied in cases with similar circumstances. Burlington Northern and Santa Fe Railway v. White In 2006, the US Supreme court endeavored to solve the divergence about what actions constitute retaliation when it decided the case of Burlington Northern and Santa Fe Railway v. White. The Burlington case was reviewed at a time when several high-profile companies, such as Toyota Motor North America, Keane, Inc., and Wal-Mart Stores, Inc, were facing allegations of sexual harassment and many employers were updating their prevention strategies. In May 2006, Toyota Motor North America appointed an independent task force to review its anti-harassment practices after being faced with accusations that an executive assistant received virtually no help after complaining of sexual advances by its chief executive. One month later, in June 2006, Keane, Inc., a computer services firm, announced a $1.14 million settlement with its vice president of marketing, whose allegations of sexual harassment led to the resignation of CEO Brian Keane. At the same time, Wal-Mart Stores, Inc. agreed to pay $315,000 to settle two sexual harassment complaints (Henneman, 2006). While these cases reflect sexual harassment claims, subsequent rulings discussed herein will demonstrate the relationship of retaliation to other discriminatory practices. In Burlington Northern and Santa Fe Railway v. White, the Supreme Court held that retaliation could include any materially adverse employment action that might have dissuaded a reasonable worker or applicant from complaining about discrimination or

Discriminatory acts in the workplace 699

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unlawful harassment. The case was instituted against Burlington Northern and Santa Fe Railway Company by Sheila White, the only female employee working in the Maintenance of Way Department at the company, based on the alleged actions of several of Burlingtons supervisors. Whites employment with Burlington began in June 1997, when she became a track laborer with the responsibility of cleaning debris from the right-of-way and replacing track components. Soon after her employment began with the company, Whites responsibilities were expanded and she became the primary forklift operator. Within three months of beginning her employment with Burlington, White complained to company officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way Department. Additionally, White alleged that Joiner had expressed insulting and inappropriate remarks to her in the presence of her male colleagues. After an internal investigation, Burlington suspended Joiner for ten days, and he was ordered to attend a sexual harassment training session. White was informed about Joiners discipline but at the same time was notified that she was being removed from her forklift operator duty and assigned to perform only standard track laborer tasks (Burlington Northern and Santa Fe Railway v. White). Subsequently, White filed a complaint with the EEOC claiming that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for having earlier complained about Joiner. Two months later, White filed a second charge of retaliation against Burlington claiming that she had been placed under surveillance and her daily activities were monitored. Shortly thereafter, a dispute arose between White and her immediate supervisor, Percky Sharkey, about which truck should transport White from one location to another. As a result of this dispute, White was disciplined for being insubordinate and immediately suspended without pay. In response, White appealed this decision through Burlingtons internal grievance procedures. Ultimately, these grievance procedures revealed that White had not been insubordinate and the company reinstated her to her position and awarded her back pay for the 37 days she was suspended. Notwithstanding Whites reinstatement to her fork lifting position and a back pay award, she filed another retaliation charge with the EEOC based on the suspension (Burlington Northern and Santa Fe Railway v. White). Thus, even when discrimination complaints are settled, retaliation suits may still be filed against the employer. It is important to note that retaliation is a separate act than the initial gender discrimination in this case and can be decided upon independent of the outcome of the initial protected activity claim. After the administrative remedies were exhausted, White filed a Title VII action against Burlington in federal court claiming that Burlingtons actions of changing her job responsibilities and suspending her for 37 days without pay represented unlawful retaliation. A jury found in favor of White and awarded her $43,500 in compensatory damages, including $3,250 in medical expenses. Ultimately, the Supreme Court held that Whites reassignment and suspension constituted retaliation under Title VII. As a result of this case, the Supreme Court determined that the scope of Title VIIs antiretaliation provision extended beyond workplace-related or employment-related retaliatory acts and that harm was not limited to discriminatory actions which affect the terms and conditions of employment. The Supreme Court also found that Title VIIs substantive provision (e.g. gender discrimination) and its anti-retaliation provision do not have the same scope or coverage. Specifically, the Supreme Courts ruling in Burlington effectively enlarged the protection for employees as well as the legal risk to employers since under certain circumstances unlawful retaliation can involve acts such as excluding an employee from meetings,

relocating his or her office, modifying his or her job duties, giving the employee a negative performance appraisal, or transferring the employee to a shift with less desirable hours. In summary, the Burlington v. White case accomplished two objectives: (1) expanded the scope of retaliation; and (2) addressed employer actions involving employees engaged in a protected activity. Hence, the impact of the Burlington case will likely affect the outcomes of future retaliation complaints and employers may in turn be more cautious in how they manage employees when they are engaged in a protected activity. Performance management The retaliation statute along with other anti-discrimination legislation was meant to protect employees from unjust actions in the workplace that would impact their employment outcomes. It is clear from the range of acts covering race, gender, disabilities, age, religion, nationalities, and retaliation that these provisions were meant to constrain behaviors in the workplace that resulted in unfair and biased treatment. However, these acts do not preclude organizations from addressing legitimate business concerns around performance management and employee discipline. What follows is a discussion of the organizational challenges in addressing performance issues and employee discipline in light of the retaliation statute. We draw on theories of human behavior to include equity and justice theories that specifically impact performance and employee perceptions to aid organizational managers in balancing the need for employee discipline and addressing performance management concerns in a non-discriminatory manner. Employee discipline One of the challenges for employers in the normal course of business concerns employee performance issues and disciplinary actions, particularly when there is a pending discrimination complaint from the employee in question. Generally, employers have the right to discipline employee behavior and apply appropriate punishments varying from verbal and written warnings to suspensions, probations, and subsequent terminations. However, when the employee subject to discipline has a pending complaint of employment discrimination, employers must be careful not to engage in disciplinary actions that can be construed as resulting from the protected activity. If employers must exercise disciplinary procedures against an employee with a pending claim for a protected activity, they must be able to demonstrate that they have legitimate nonretaliatory reasons for taking actions which involve firing or demoting an employee who may not be performing or who may be under-performing. The McDonnell Douglas burden of proof framework has been used to assess whether acts are retaliatory or result from normal employee relations addressing employee discipline. Under this framework, the employee initiating the retaliation claim must establish a prima facie case of retaliation by presenting sufficient direct evidence or to raise an inference of retaliation by demonstrating that:
. . .

Discriminatory acts in the workplace 701

he/she engaged in a protected activity; he/she suffered an adverse employment action; and a causal connection exists between the protected activity and the subsequent employment decision (e.g. discipline; McDonnell Douglas Corporation v. Green, 1973).

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702

After the employee satisfies this initial burden, the burden then shifts to the employer to defend the employees assertion by providing a legitimate non-retaliatory reason for the employers action taken against the employee. If the employer was unable to satisfy the burden of providing a legitimate non-retaliatory reason for the conduct, the employee may proceed securing a judgment as a matter of law. Alternatively, if the employer was able to satisfy the burden, the burden then shifts back to the employee to show that the employers proffered reason for the action taken against the employee was a pretext and there was a genuine issue of material fact as to whether the action was retaliatory (McDonnell Douglas Corporation v. Green, 1973). The McDonnell Douglas framework places a burden on both the employee and employer but in distinctly different ways. For the employee, they must be able to demonstrate that the action taken was unique and associated with their filing under a protected activity, while the employer must be able to demonstrate that they would have taken the disciplinary action even in the absence of the employees claim under a protected activity and that it was not specifically targeting the employee. An important outcome of the Burlington ruling was the standard of conduct by employers and it is important to understand what employment actions are permissible and prohibited when the employee is engaged in a protected activity. Employees may well have a halo of protection from specific employment actions when they can be linked to pending litigation or even a settled case. Alternatively, the anti-retaliation provision may be utilized in cases by under-performing employees to evade the consequences of performance issues. In turn, employers may have trepidation about terminating these under-performing workers to circumvent a possible retaliation suit (Orey, 2007; Miles and Fleming, 2008). A case that illustrates the risk to employers of a retaliation lawsuit being filed by an employee with performance issues despite the fact that the company may have a legitimate business reason for terminating the employee is the case of Hermant Mody v. General Electric (GE) Company (2006). In this case, Mody filed suit under several acts including the ADEA, Family Medical Leave Act (FMLA), and Title VII of the Civil Rights Act of 1964 in addition to retaliation because he was terminated when he exhausted his leave time due to an illness. GE argued that they terminated Mody because he had previously been documented for interpersonal and managerial skills that negatively impacted his performance. This documentation occurred prior to the leave time for illness and the subsequent termination was for failure to return to work and job abandonment not because of his age or health. Because Mody was unable to present evidence to rebut GEs disciplinary procedure, the ruling on discriminatory practices was in favor of GE. However for Modys claim of retaliation, the court determined that Mody satisfied the initial burden of establishing a prima facie case of retaliation. Subsequently, the jury awarded him $591,423 in back pay, $500,000 in compensatory damages, and $10 million in punitive damages and determined that Mody was entitled to an award of liquidated damages due to a willful violation of age discrimination and retaliation. This case demonstrates that when the adverse action is termination, there may be a greater burden on employers to demonstrate that employment action taken was non-retaliatory. Impact on personnel decisions The intent of the retaliation provision was not to prevent employers from taking necessary job-related actions against an employee but rather places a burden for them to distinguish the action from an employees participation in a protected activity. The concern for potential retaliation lawsuits, like the one that confronted GE in Mody,

should not cause companies to avoid proper disciplinary actions including termination decisions when dealing with an under-performing employee who has engaged in protected activity. In some instances, the companies decisions to retain underperforming employees were deemed necessary to avoid further litigation on the basis of retaliation. One example includes a hospital in the Southeast that was forced to downsize due to budget cuts. Initially, the department head elected to terminate a female in favor of keeping a more junior male, whom he had spent a great deal of effort recruiting and whom he felt was more valuable. However, hospital administrators made the decision to retain the female and terminated the male out of concern that they would have more exposure to a lawsuit by the female employee (Orey, 2007). Our review revealed other cases where employee performance issues were not acted on out of fear of litigation. One case involved a manufacturer that acquired a new facility and quickly identified one worker as having a variety of performance issues. In this case, an African American females employment file was not properly documented indicating the need for improved performance, which subsequently made terminating her risky. Accordingly, the company placed the woman on a six-month performance improvement program to document her deficiencies, extending the employment relationship to provide an opportunity to improve her performance. At the conclusion of the program, the woman failed to enhance her performance and was subsequently terminated based on performance deficiencies (Orey, 2007). A second example of this point is illustrated by Revolution Partners, a small investment banking advisory firm that had an employee sign a form waiving her right to sue for wrongful termination despite the fact that the employee had used her company credit card for a personal shopping spree and a plane ticket. The employee was terminated for misconduct; however, the company took no legal action against the employee for improper use of her credit card (Orey, 2007; Miles and Fleming, 2008). These select cases demonstrate the challenges of organizational responsibilities to adequately manage performance while avoiding discriminatory actions. In these instances, both firms retained employees longer than necessary out of fear of litigation. The rules surrounding retaliation claims are one of the primary reasons why the fears of wrongful termination lawsuits are so prevalent. A contributing factor to these types of decisions is the finding that an employee does not need a strong discrimination claim to prove his/her retaliation claim. Often, the weak discrimination claim is the one that produces the strong retaliation lawsuit because an employee does not need to prove the claim of harassment or discrimination to prevail in a retaliation claim. Because of apprehension about possible retaliation claims and in an effort to circumvent possible litigation, our review revealed that employers may opt to deter certain personnel decisions and actually retain under-performing employees out of concerns of retaliation claims. Even in cases where employers decide to defend themselves against discrimination or retaliation claims initiated by an under-performing employee, these companies were faced with incurring countless hours devoted to their legal defense and litigation costs. For instance, IBM employee, James Pacenza was terminated from his job after viewing pornography on his computer at work. In 2004, James Pacenza filed suit against IBM in federal court seeking $5 million in punitive and compensatory damages claiming that his firing was wrongful and discriminatory (Armour, 2007). Pacenza, a Vietnam War veteran, alleged that he used the adult chat website to alleviate the symptoms of his posttraumatic stress disorder (PTSD). Additionally, he alleged that his PTSD was a disability and by terminating him IBM had violated his rights under the Americans with Disabilities Act. IBM responded to Pacenzas allegations by explaining that he was

Discriminatory acts in the workplace 703

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terminated for breaching the companys business code of conduct (Orey, 2007; Miles and Fleming, 2008). Though this case was ultimately dismissed, it took nearly five years and thousands of dollars to defend this suit. Hence, even if an employer prevails in litigating a meritless suit initiated by an employee, the time and costs of defending such a suit may cancel out any idea that the company achieved success in defending this claim. Practitioner implications There are a number of impacts of the retaliation legislation and from recent rulings on this statute. While equal employment laws and the retaliation statute are drawn from legislation for the US workplace, they have implications for the growing number of multinationals as well as those engaged in expatriate assignments (Posthuma et al., 2006). It is important to determine how these laws affect international employers and Posthuma and colleagues (2006) have demonstrated that they depend in part on the following:
. . . .

704

location of the job; nationalization of entity; citizenship of employees; and local laws within the nation of operation.

Thus, as firms expand operations into the USA and the extent to which US firms expand operations in other countries, it is critical that firms understand these laws and how to comply to avoid costly litigation. Recent research has demonstrated that employment discrimination trends in the international workplace included Americans working outside the USA filing charges against foreign employers as well as non-US citizens exercising employment law statutes against US employers (Domagalski, 2008). Thus, the importance of employment anti-discrimination laws, including retaliation, is not limited to the USA. Equal employment opportunity laws, including retaliation, were enacted to promote a fair and unbiased workplace and to provide employees with remedies under the law in the event they are violated. The overriding goal of retaliation is to emphasize that employment actions should not be linked to employees exerting their rights under the law. Likewise, it was not intended to restrict employers rights to address discipline for employee behaviors in the workplace. One way to ensure compliance is to design policies and procedures that are compliant with the laws and ensure that managers are appropriately trained to avoid unnecessary litigation. The cases reviewed in this work highlight the actions against employees as well as the concerns of employers that normal business practices may be construed as retaliation. This review suggests several human resource management practices that should be considered and implemented to balance business necessity with workplace fairness. These practices include anti-discriminatory policies, training, reporting mechanisms, and accountability (Louderback and Narvid, 2008). At a minimum, organizations should recognize that the legal, economic, and reputational risk to the firm are significant and an abundance of caution may be required when dealing with retaliation claims. Therefore, Burlington may be used as a tool for human resource (HR) professionals to gain managements commitment and emphasize the need for HRs input on employment decisions and for preventative training. Training should be continuous to ensure that managers and others with supervisory responsibilities are well versed in equal employment opportunity laws and understand what constitutes retaliation. As stated, the initial purpose the retaliation statute was to protect employees from adverse employment outcomes as a result of exercising their rights under equal employment opportunity laws. One of the major concerns is performance management and

what rights and/or constraints may be placed on firms when employee litigation is pending. Notably, a current lawsuit demonstrates that these issues raised in this review continue to be relevant and require future research attention by academicians and practitioners. In this case, two fire investigators have filed suit for racial discrimination and retaliation against the District of Columbia Fire and Emergency Medical Services alleging that they were assigned menial and demeaning duties after they complained about the fire departments mishandling of possible arson cases, including what they said was a botched probe of the blaze that destroyed the historic Eastern Market on Capitol Hill (Labba-DeBose and Duggan, 2009). This case demonstrates that employers may not understand what constitutes retaliation and the provisions for specific employment actions. While the outcome of this case is pending, it highlights the need for understanding the consequences of taking adverse actions against employees engaged in a suit for a protected activity. If disciplinary procedures are applied to an employee with a pending charge under a protected activity, documentation of the issues associated with discipline should be evident from the employees record and not subsequent to the filing of the charge. Managing employee performance Employers can successfully manage performance and simultaneously ensure that employment practices result in fair and equal treatment. However, employers must be careful not to send conflicting messages to employees regarding performance expectations due to concerns of retaliation claims. For instance, if an employer begins to reduce the number of terminations due to performance issues in response to retaliation threats, employees may perceive that this action supports mediocrity. A number of management theories are applicable for addressing performance management and appropriately deal with employee perceptions of such practices. One theory is Adams (1965) equity theory which asserts that employees evaluate and potentially modify their effort at work based on comparing inputs and outcomes relative to self and other workers. Why would an employee exert his or her best effort when mediocrity is acceptable, and there is no threat of job loss or negative consequences? Given the premise of equity theory employees would reduce their inputs (work effort and/or quality) to sustain the similar outcome the absence of job loss. This occurrence is more likely in those organizations where rewards are infrequent or less differentiated. Furthermore, performance management maintains that employee performance be clearly identified, measured, and managed. Conflicting messages, regarding performance expectations, jeopardize this process. Moreover, structural components such as policies, procedures and documents, and corresponding employee perception regarding implementation are further areas for preventive measures (Clardy, 2003). A second theoretical framework to address these concerns is organizational justice, which involves perceptions of fairness by the employee in both the processes used and the outcomes received (Folger and Cropanzano, 2001). According to justice theories, employees will modify behaviors (e.g. effort, persistence, attendance, etc.) when perceived violations to fairness occurs which can have a direct or indirect impact on performance. Thus, it is important to have performance management (i.e. appraisal) guidelines that are also communicated with the employee. Employee performance should be documented outlining problem areas and outlining goals for improvement. Furthermore, employer dialogue with employees should be ongoing. Additionally, employees should be given an opportunity to appeal evaluation decisions and offered counseling and/or training to address performance issues (Dessler, 2005). These measures promote perceptions of procedural justice in which employees will evaluate the perceived fairness of the implementation of policies

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and procedures and are an extension of equity theory (Skarlicki et al., 1999). These measures serve not only to aid in performance management but also demonstrate an employers commitment to promote fairness in the workplace. The impact of retaliation claims is not limited to the financial costs imposed upon employers because discrimination complaints of any form may negatively impact the companys reputation and employee morale. Few things demotivate employees faster than tolerating and retaining low performers (Orey, 2007). Therefore, as previously stated, retaining under-performing employees can affect the work of other employees. In particularly, co-workers of under-performing employees may be unwilling to be diligent in performing their job duties if under-performing employees incur no consequences for their performance deficiencies. Conversely, one might consider perceived acceptance of mediocrity as a stress alleviator that could contribute to employee well-being and support the fundamentals of work life balance. Perceived stress for individuals could be alleviated as the pressures of high performance have now been lessened. However, the acceptance of mediocrity and poor performance can be anticipated to lower morale. This manifestation into organizational culture may reduce the firms ability to obtain strategic objectives, attract top talent and reach profitability goals (Miles and Fleming, 2008). The increase in retaliation claims may heighten litigation fears for employers but recent clarifications in the statute by the US Supreme Court provides companies with guidance on employee procedures and practices as well as the authority to sustain justifiable disciplinary actions. Whether an employee has a legitimate claim of discrimination does not insulate an employer from liability when retaliatory actions are imposed (Miles and Fleming, 2008). The increase in the number of retaliation claims combined with the uncertainty as to whether an employee will prevail should serve as a cautionary notice to organizations to gain a better understanding of what constitutes retaliation. It is ultimately the responsibility of the employer to prevent retaliatory acts and ensure that all members of the organization are well informed of the nature of compliance and the associated consequences. At the same time, employers must adequately manage employee performance issues even when an employee has a pending complaint for a protected activity. One of the evidentiary issues that the EEOC examines in cases of retaliation is the documentation that occurred before the employee engaged in a protected activity as well as the inference of retaliation (Louderback and Narvid, 2008). Research implications and future considerations Prior research on retaliation has generally been examined with a pre-text for understanding retaliatory behaviors and have utilized both organizational justice and counterproductive work behavior frameworks (e.g. Ambrose et al., 2002; Cortina and Magley, 2003; Mitchell and Ambrose, 2007; Skarlicki et al., 1999). One of the potential gaps in the law concerning retaliation is who can be held responsible for retaliatory behaviors (Crockett and Gilmere, 1999). When supervisors retaliate, the court rulings have been very clear but not when other employees engage in retaliatory behaviors or ostracize those who file complaints. Agency theory has generally been applied by the courts and may aid scholars by utilizing this framework to better understand employeeemployer roles and further aid our understanding of these behaviors. Accordingly, if organizations are held liable for the behaviors of employees, organizations would benefit from this research. Further understanding of retaliatory behaviors, may allow organizations to engage in training that will promote attitudinal and behavioral shifts that would lessen retaliatory suits. Future research is needed on retaliatory acts in the

workplace that distinguish employer and employee actions and whether existing theories sufficiently address these organizational issues. Future research is also needed to address retaliation in the workplace. We know very little about whether retaliatory acts may be attributed to the issues raised in prior research in disparate treatment. As we cited earlier in this work, retaliation has generally been excluded in employment discrimination research. Thus, it is not known whether retaliatory acts and/or fear of retaliation may be reflected in the purposeful discrimination based on demographic categorization and sexual harassment (Berdahl and Moore, 2006; Lengnick-Hall, 1995; Lim and Cortina, 2005; Konrad and Linnehan, 1999; Portwood, 1995; Schein et al., 1996; Swim et al., 1995). Furthermore, to what extent do sex stereotypes impact the incidence and severity of retaliation? We also know very little about the attributes of those who experience retaliation and whether racism and/or sexism may be related to these acts. Additionally, we know little about whether fear of retaliation may impact voice mechanisms available to employees through the various equal employment opportunity laws to address fairness issues in the workplace. While prior research has examined employee perceptions of climate, we found no studies that specifically address retaliation as the basis for employee and employer concerns. We propose that future research in employment discrimination and diversity management may be aided by the inclusion of retaliation in terms of both perceptions and the incidence of retaliatory acts in addressing workplace fairness. Conclusion The increase in the number of retaliation claims combined with the uncertainty as to whether an employee will prevail should serve as a cautionary notice to organizations to gain a better understanding of what constitutes retaliation. Recent clarifications in the statute by the US Supreme Court provide companies with guidance on employee procedures and practices as well as the authority to sustain justifiable disciplinary actions. Moreover, these changes in the retaliation statute expanded the scope of the statute and serve as notice to employers about the importance of understanding not only the definition of the law but also workplace compliance. Therefore, an examination of retaliations implications to organizational practices and performance (financial and productive) is merited. This review offered cases demonstrating that adverse employment actions in the workplace need not be overt to garner a retaliation claim and a subsequent damage award. Whether an employee has a legitimate claim of discrimination does not insulate an employer from liability when retaliatory actions are imposed (Miles and Fleming, 2008). Ultimately the responsibility of the employer is to prevent retaliatory acts and ensure that all members of the organization are well informed of the nature of compliance and the associated consequences. At the same time, employers must adequately manage employee performance issues even when an employee has a pending complaint for a protected activity. Employer reaction to the threat of a retaliation claim may manifest in performance management practices. The threat may serve as a deterrent to employee discipline and termination or encourage employers to effectively engage in fair and productive preparation. Proactive measures are required when confronted with a retaliation claim such that policies and procedures demonstrate the consideration of employee and employer well-being. Employers must further consider the importance of equity and fairness perceptions within the organization, particularly when it comes to the implementation of these procedures. Overall, this review sought to explain retaliation legislation, review court cases that highlight compliance, and provided considerations for enhancing the work environment for overall fairness.

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References Adams, J.S. (1965), Inequity in social exchanges, in Berkowitz, L. (Ed.), Advances in Experimental Social Psychology, Academic Press, New York, NY, Vol. 2, pp. 267-99. Ambrose, M.L., Seabright, M.A. and Schminke, M. (2002), Sabotage in the workplace: the role of organizational justice, Organizational Behavior and Human Decision Processes, Vol. 89, pp. 947-65. Armour, S. (2007), Technology makes porn easier to access at work; employers, worried about new wave of lawsuits, are struggling to crack down, USA Today, October 18. Berdahl, J.L. and Moore, C. (2006), Workplace harassment: double jeopardy for minority women, Journal of Applied Psychology, Vol. 91 No. 2, pp. 426-36. Bojorquez, D. and Kleiner, B.H. (2005), How to validate conclusions regarding discrimination based on EEOC criteria, Equal Opportunities International, Vol. 24, pp. 59-67. Bowen, D.E. and Ostroff, C. (2004), Understanding HRM-firm performance linkages: the role of the strength of the HRM system, The Academy of Management Review, Vol. 29 No. 2, pp. 203-21. Burlington Northern and Santa Fe Railway. Co. v. White (2006), 548 US 53. CBOCS West, Inc. v. Humphries (2008), 128 S.Ct. 1951. Cicerone, B., Sassaman, R. and Swinney, J. (2005), The path to improved performance starts with theory: a lesson learned from Tom Gilbert, Performance Improvement, Vol. 44 No. 2, pp. 9-14. Clardy, A. (2003), The legal framework of human resources development, Part II: fair employment, negligence, and implications for scholars and practitioners, Human Resource Development Review, Vol. 2, pp. 130-54. Cortina, L.M. and Magley, V.J. (2003), Raising voice, risking retaliation: events following interpersonal mistreatment in the workplace, Journal of Occupational Health Psychology, Vol. 8, pp. 247-65. Crew, K. (2007), Clearing the air or muddying the waters? The effect of Burlington Northern on title VII retaliation litigation, Labor Law Journal, Vol. 99, pp. 96-116. Crockett, R.W. and Gilmere, J.A. (1999), Retaliation: agency theory and gaps in the law, Public Personnel Management, Vol. 28, pp. 39-47. Crosby, F.J., Iyer, A. and Sincharoen, S. (2006), Understanding affirmative action, Annual Review of Psychology, Vol. 57, pp. 585-611. Dessler, G. (2005), Human Resource Management, 10th ed., Pearson, Upper Saddle River, NJ. Domagalski, T.A. (2008), Employment discrimination and the international workplace: a review of recent US court rulings, Employee Responsibilities & Rights Journal, Vol. 20, pp. 195-204. Folger, R. and Cropanzano, R. (2001), Fairness theory: justice as accountability, in Greenberg, J. and Folger, R. (Eds), Advances in Organizational Justice, New Lexington Press, Lexington, MA. Goldman, B.M., Gutek, B.A., Stein, J.H. and Lewis, K. (2006), Employment discrimination in organizations: antecedents and consequences, Journal of Management, Vol. 32, pp. 786-830. Gomez-Perez v. Potter (2008), 128 S. Ct. 1931. Hafford v. Seidner (1999), 183 F.3d 506, 515 (6th Cir. 1999). Henneman, T. (2006), After high court ruling, firms may want to take long look at antiharassment strategies, Workforce Management, Vol. 85 No. 14, pp. 33-6. Knapp, D.E., Faley, R.H. and Long, L.K. (2006), The Americans with Disabilities Act: a review and synthesis of the legal literature with implications for practitioners, Equal Opportunities International, Vol. 25, pp. 354-72. Konrad, A.M. and Linnehan, F. (1999), Affirmative action: history, effects, and attitudes, in Powell, G.N. (Ed.), Handbook of Gender and Work, Sage, Thousand Oaks, CA, pp. 429-52.

Labba-DeBose, T. and Duggan, P. (2009), Two arson investigators punished for speaking out, suit says, Washington Post, February 20, p. B04. Lengnick-Hall, M.L. (1995), Sexual harassment research: a methodological critique, Personnel Psychology, Vol. 48 No. 4, pp. 841-64. Lieber, D. (2006), As retaliation rises, Supreme Court expands standards, Employment Relations Today, Vol. 33 No. 3, pp. 91-7. Lim, S. and Cortina, L.M. (2005), Interpersonal mistreatment in the workplace: the interface and impact of general incivility and sexual harassment, Journal of Applied Psychology, Vol. 90 No. 3, pp. 483-96. Louderback, C.M. and Narvid, L.S. (2008), U.S. Supreme Court decisions expand employees ability to bring retaliation claims, Compensation & Benefits Review, Vol. 40, pp. 51-7. McDonnell Douglas Corporation v. Green (1973), 411 US 792. Miles, A. and Fleming, M. (2008), Considering retaliation as a legal deterrent for terminating underperforming employees and its impact on settlement and litigation costs, Journal of Law & Business, Vol. 15, pp. 45-61. Mitchell, C.E. (2009), Retaliation lawsuits held applicable for federal employees under the Age Discrimination in Employment Act: a victory for older federal workers, Review of Public Personnel Administration, Vol. 29 No. 1, pp. 89-94. Mitchell, M.S. and Ambrose, M.L. (2007), Abusive supervision and workplace deviance and the moderating effects of negative reciprocity beliefs, Journal of Applied Psychology, Vol. 92, pp. 1159-1168. Mody v. General Electric (2006), 2006 US Dist. Lexis 8611, No. 3-04-cv-358 (D. Conn. Feb. 21, 2006). N den hartog, D., Boselie, P. and Paauwe, J. (2004), Performance management: a model and research agenda, Applied Psychology, Vol. 53 No. 4, p. 556. Olson, E. (2000), Beyond the scope of employer liability: employer failure to address retaliation by co-workers after title VII protected activity, William & Mary Journal of Women & Law, Vol. 7, p. 239. Orey, M. (2007), Fearing firing: how the threat of litigation is making companies skittish about axing problem workers, Business Week, April 23, p. 52. Owens, J.M., Gomes, G.M. and Morgan, J.F. (2008), Broadening the definition of unlawful retaliation under Title VII, Employee Responsibilities and Rights Journal, Vol. 20, pp. 249-60. Portwood, S.G. (1995), Employment discrimination in the public sector based on sexual orientation: conflicts between research evidence and the law, Law and Psychology Review, Vol. 19, pp. 113-52. Posthuma, R.A., Roehling, M.V. and Campion, M.A. (2006), Applying US employment discrimination laws to international employers: advice for scientists and practitioners, Personnel Psychology, Vol. 59, pp. 705-39. Roehling, M.V. (1999), Weight-based discrimination in employment: psychological and legal aspects, Personnel Psychology, Vol. 52, pp. 969-1016. Ryan, L. (2007), Expanding the scope of the expansive approach: the Burlington Northern Standard as a per se approach to federal anti-retaliation law, Arizona Law Review, Vol. 49, p. 745. Schein, V.E., Mueller, R., Lituchy, T. and Liu, J. (1996), Think manager think male: a global phenomenon?, Journal of Organizational Behavior, Vol. 17 No. 1, pp. 33-41. Skarlicki, D.P., Folger, R. and Tesluk, P. (1999), Personality as a moderator in the relationship between fairness and retaliation, Academy of Management Journal, Vol. 42, pp. 100-8. Swim, J.K., Aikin, K.J., Hall, W.S. and Hunter, B.A. (1995), Sexism and racism: old-fashioned and modern prejudices, Journal of Personality and Social Psychology, Vol. 68 No. 2, pp. 199-214.

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Taylor, P. and Walker, A. (1994), The ageing workforce: employers attitudes towards older workers, Work Employment and Society, Vol. 8, pp. 569-91. US Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964 (2009), Enforcement Statistics, FY1996-2006, available at: www.eeoc.gov/stats US Equal Employment Opportunity Commission (2009), Compliance Manual, available at: www.eeoc.gov/policy/compliance.html Zambito, T. (2007), I fired her for griping, Knicks Dolan sez sex claims risked health of garden, Daily News, September 19. About the authors Angela Miles (PhD Florida State University) is currently an Assistant Professor of Management at North Carolina A&T State University, where she teaches human resource management and organizational behavior. Her research is focused on organizational stress, office ergonomics, quality of work life issues (spirituality), and employment law. Dr Miles is published in numerous journals and conference proceedings and is the recipient of several conference best paper awards. She was previously employed in the banking, automotive, and telecommunications industries. Angela Miles is the corresponding author and can be contacted at: akmiles@ncat.edu Marka Fleming ( JD North Carolina Central University) is currently an Assistant Professor of Business Law at North Carolina A&T State University where she teaches business law and legal environment. Her research is focused primarily on labor law and contract law. Arlise P. McKinney (PhD Virginia Tech) is currently an Assistant Professor of Business Administration at The University of North Carolina, Greensboro. Dr McKinneys research interests include workplace diversity with a specific focus on personnel selection and adverse impact, diversity climate, and construct measurement and validation. Her teaching interests include human resource management, managing diversity in organizations, management assessment, and development.

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